The ultimate objective of every Islamic legal injunction is to secure the welfare of humanity in this world and the next by establishing a righteous society. This is a society that worships God and flourishes on the Earth, one that wields the forces of nature to build a civilization wherein every human being can live in a climate of peace, justice and security. This is a civilization that allows a person to fulfill his every spiritual, intellectual, and material need and cultivate every aspect of his being. This supreme objective is articulated by the Quran in many places. God says:
We have sent our Messengers with clear signs and have sent down with them the book and the criterion so that man can establish justice. And we sent down iron of great strength and many benefits for man... (Quran 57:25)
And He says:
…God wants ease for you, not hardship... (Quran 2:185)
And He says:
God wants to make things clear for you and to guide you to the ways of those before you and to forgive you. God is the All knowing, the Wise. God wants to forgive you and wants those who follow their desires to turn wholeheartedly towards (what is right). God wants to lighten your burdens, and He has created man weak. (Quran 4:26-28)
And He says:
God commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice… (Quran 16:90)
Since the Islamic legal injunctions are aimed at achieving human welfare, they can all be referred back to universal principles which are necessary for human welfare to be secured. These universal principles are:
- The preservation of life.
- The preservation of religion.
- The preservation of reason.
- The preservation of lineage.
- The preservation of property.
The Islamic penal system is aimed at preserving these five universal necessities. To preserve life, it prescribes the law of retribution. To preserve religion, it prescribes the punishment for apostasy. To preserve reason, it prescribes the punishment for drinking. To preserve lineage, it prescribes the punishment for fornication. To preserve wealth, it prescribes the punishment for theft. To protect all of them, it prescribes the punishment for highway robbery.
It should therefore become clear to us why the crimes for which Islam for which the Law has prescribed fixed punishments are as follows:
- Transgression against life (murder or assault).
- Transgression against property (theft).
- Transgression against lineage (fornication and false accusations of adultery).
- Transgression against reason (using intoxicants).
- Transgression against religion (apostasy).
- Transgression against all of these universal needs (highway robbery).
1. Prescribed Punishments
Crimes that fall under this category can be defined as legally prohibited acts that God forcibly prevents by way of fixed, predetermined punishments, the execution of which is considered the right of God.
These punishments have certain peculiarities that set them apart from others. Among these are the following:
- These punishments can neither be increased nor decreased.
- These punishments cannot be waived by the judge, the political authority, or the victim after their associated crimes have been brought to the attention of the governing body. Before these crimes are brought before the state, it may be possible for the victim to pardon the criminal if the damage done was only personal.
- These punishments are the ‘right of God’, meaning that the legal right involved is of a general nature where the greater welfare of society is considered.
The following crimes fall under the jurisdiction of the fixed punishments:
Theft is defined as covertly taking the wealth of another party from its secure location with the intention of taking possession of it.
3. Fornication and Adultery
This is defined as any case where a man has coitus with a woman who is unlawful to him. Any relationship between a man and a woman that is not inclusive of coitus does not fall under this category and does not mandate the prescribed, fixed punishment.
4. False Accusation
This is defined as accusing the chaste, innocent person of fornication or adultery. It also includes denying the lineage of a person from his father (which implies that his parents committed fornication of adultery). False accusation includes any claim of fornication or adultery that is not backed up by a proof acceptable to Islamic Law.
One of the most important objectives of Islam is the realization of human welfare and the avoidance of what is harmful. Because of this, it “permits good things and prohibits harmful things.” Islam, thus, protects the lives of people as well as their rational faculties, wealth, and reputations. The prohibition of wine and the punishment for drinking it are among the laws that clearly show Islam’s concern for these matters, because wine is destructive of all the universal needs, having the potential to destroy life, wealth, intellect, reputation, and religion. God says:
O you who believe! Verily wine, gambling, idols, and divination are but the abominations of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of God and prayer. Will you not then desist? (Quran 5:90-91)
Apostasy is defined as a Muslim making a statement or performing an action that takes him out of the fold of Islam. The punishment prescribed for it in the Sunnah is execution, and it came as a remedy for a problem that existed at the time of the Prophet, may the mercy and blessings of God be upon him. This problem was that a group of people would publicly enter into Islam together then leave Islam together in order to cause doubt and uncertainty in the hearts of the believers. The Quran relates this event to us:
A group from the People of the Scripture said: ‘Believe in what is revealed to those who believe at the beginning of the day, then disbelieve at the end of the day, so perhaps they might return from faith. (Quran 3:72)
Thus, the prescribed punishment for apostasy was instituted so that apostasy could not be used as a means of causing doubt in Islam.
At the same time, the apostate is given time to repent, so if he has a misconception or is in doubt about something, then his cause of doubt can be removed and the truth clarified to him. He is encouraged to repent for three days.
This is the second type of punishment in Islamic Law. This is where the perpetrator of the crime is punished with the same injury that he caused to the victim. If the criminal killed the victim, then he is killed. If he cut off or injured a limb of the victim, then his own limb will be cut off or injured if it is possible without killing the criminal. Specialists are used to make this determination.
Important Rules Regarding Retribution
1. Retribution is not lawful except where the killing or injury was done deliberately. There is no retribution for accidentally killing or injuring someone. God says:
O you who believe, retribution is prescribed for you in the case of murder... (Quran 2:178)
And He says:
…There is retribution in wounds... (Quran 5:45)
2. In the crimes where the criminal directly transgresses against another, Islam has given the wish of the victim or his family an important role in deciding whether or not the punishment should be carried out. Islam permits the victim to pardon the perpetrator, because the punishment in these crimes is considered the right of the victim. Islam even encourages pardon, promising a reward in the hereafter for the one who does. God says:
If anyone waives the right to retaliation out of charity, it shall be an expiation for him. (Quran 5:45)
The pardon can either be to the payment of blood money, a fixed, monetary compensation, or can be total, where no worldly compensation is demanded. God says:
To forgive it is closer to piety... (Quran 2:237)
3. The punishment must be carried out by the government. The family of the victim cannot carry it out.
The Wisdom behind Retribution:
With regard to Islamic punishments in general, and retribution in specific, we find that they have two complementary characteristics. The first of these is the severity of the punishment. This is in order to discourage the crime and limit its occurrence.
The second characteristic is the difficulty of establishing guilt, reducing the opportunities for carrying out the punishment, and protecting the accused. In this vein, we see the principle that punishments are waived in the presence of doubt, and that the benefit of the doubt is always given to the accused. Some prescribed punishments are even waived on the grounds of repentance, as we can see in the case of highway robbery. This is also seen in the permissibility of pardon in the case of retribution and the fact that pardon is encouraged and preferred.
These two elements complement each other in that crime is effectively discouraged, protecting society, and the rights of the accused are safeguarded by the fact that speculation and accusations cannot be grounds for punishment, and that the accused enjoys the greatest guarantee of justice and being spared the punishment whenever possible. Most people will abstain from committing crime, because of the severity of the punishment, and the punishments for these crimes will rarely be carried out. In this way, the general security of society and the rights of the individual are equally realized.
3. Discretionary Punishments
These are punishments that are not fixed by Islamic Law, for crimes that either infringe on the rights of God or the rights of an individual, but do not have a fixed punishment or a set expiation.
Discretionary punishments are the broadest category of punishments, because the crimes that have fixed punishments are few in number and all other crimes fall under the scope of this last category.
They are the most flexible type of punishment, because they take into consideration the needs of society and changing social conditions. Consequently, they are flexible enough to realize the maximum general benefit to society, effectively reform the criminal, and reduce the harm that he causes.
Islamic Law has defined different types of discretionary punishments starting from exhortations and reprimands to flogging, to fines, and to imprisonment. These discretionary measures are left to the decision of the legal authorities within the general framework of Islamic Law and the universal purposes of Islam that balance between the right of society to be protected from crime and the right of the individual to have his freedoms protected.
The Objectives of the Islamic Penal System
The Islamic penal system has many objectives, the most important of which are as follows:
The First Objective:
Islam seeks to protect society from the dangers of crime. It is common knowledge that if crimes are not countered with serious punishments, then society will be in grave danger. Islam seeks to make social stability and security widespread, making life in society secure and peaceful. It has made this consideration a platform for action, legislating punishments that will discourage crime. This purpose has been articulated by the following verse that discusses retribution and its effects on society:
There is (preservation of) life for you in retribution, O people of understanding, that you may become pious. (Quran 2:179)
If the murderer, or any other criminal for that matter, knows the extent of the negative consequences for himself that his crime will cause, he will think a thousand times before committing it. Awareness of the punishment will cause the criminal to abstain from committing the crime in two ways. The criminal who has already been subject to the punishment will most likely not return to the crime again. As for the rest of society, their awareness of the effects of this punishment will keep them from falling into the crime. To realize a general effect from the punishment, Islam has established the principle of publicly announcing when it will be carried out. God says:
…A group of the believers should witness the punishment. (Quran 24:2)
The Second Objective:
Islam seeks to reform the criminal. The Quran often makes mention of repentance in association with the crimes that it deals with, making it clear that the door to repentance is open whenever the criminal abandons his crime and behaves properly. It has made repentance a means of waiving a fixed punishment in some instances, like the punishment for highway robbery. God says:
…except for those who repent before you take hold of them. Then know that God is the Forgiving, the Merciful. (Quran 5:34)
God says regarding the punishment for fornication:
It they both repent and mend their ways, then leave them alone. Verily, God is the Accepter of repentance, the Merciful. (Quran 4:16)
God says after mentioning the punishment for false accusation:
… except for those who repent afterwards and makes amends, then verily God is the Forgiving, the Merciful.
God says after mentioning the prescribed punishment for theft:
Whoever repents after his wrongdoing and makes amends, then verily God will accept his repentance and verily God is the Forgiving, the Merciful. (Quran 5:39)
This objective is seen more frequently with regard to discretionary punishments, whereby it is incumbent upon the judge to take into consideration the circumstances of the criminal and what will insure his betterment.
The Third Objective:
The punishment is a recompense for the crime. It is undesirable to treat a criminal lightly who threatens the security of society with danger. The criminal should receive his just recompense as long as he is pleased with taking the path of evil instead of the path of righteousness. It is the right of society to be secure in its safety and the safety of its individual members. The Quran has asserted this objective when mentioning a number of punishments. God says:
The thieves, male and female, cut off their hands as a recompense for what they have earned... (Quran 5:38)
“The recompense for those who wage violent transgression against God and His Messenger and who go forth spreading corruption in the Earth is that they should be killed or crucified or that their hands and feet should be cut off on alternate sides or that they should be sent into exile…” (Quran 5:33)
Islam imposes preventive punishments which may appear cruel or coarse if viewed superficially or without proper consideration. But Islam does not execute such punishments unless it ascertains that the crime was not justifiable or that the criminal was not acting under any obligation.
Islam prescribes that a thief's hand should be cut, but such punishment is never inflicted where there is the slightest doubt that, he thief was impelled to crime by hunger.
Islam prescribes that both adulterer and adulteress should be stoned but it does not inflict such punishment unless they are married persons and upon conclusive evidence by four eye witnesses i.e. when two married persons flagrantly commit such a heinous crime.
It is to be mentioned that Islam took similar precautions with respect to all the punishments it had prescribed.
This is evident from a rule laid down by the second Caliph, Omar bin Al-Khattab who is considered as one of the most prominent legislators orIslam. Omar was known for his strict rigidity in enforcing the rules of Al-Sharia (law); therefore it cannot be said that he was lenient in the interpretation of the law. It should be remembered that Omar did not carry out the punishment prescribed for theft (cutting the hand) during the year of famine when there was some doubt that people might be impelled to theft by hunger.
"It was reported to Omar that some boys in the service of Hatib Ibn Abi Balta'a had stolen the she-camel of a man from the tribe of Muznah. When Omar questioned the boys they admitted the theft so he ordered their hands to be cut. But on second thoughts he said, “By God I would cut their hands if I did not know that you employ these boys and starve them so that they would be permitted to eat that which is prohibited unto them". Then he addressed their employer saying: “By God, since I have not cut their hands I am going to penalize you with a fine that shall pain you" and he ordered him to pay double the price of the she-camel".
This episode illustrates a. very clear and express principle; punishment win not be inflicted where there are circumstances which impelled the wrong-doer to commit the crime. This principle is supported by the saying of the prophet:
Avoid the execution of punishment by doubt.
If we study the policy adopted by Islam in prescribing punishment we shall realize that Islam tries in the first place to purify society from circumstances that may lead to crime. After taking such precaution Islam prescribes a preventive and just punishment which may be inflicted upon persons who have no reasonable justification for their crimes. Where the community is unable to preclude circumstances which may lead to crime or where there is some doubt regarding the crime, the punishment will not be inflicted and the ruler will set the criminal free or he may inflict on him a light punishment (beating or imprisonment) in proportion to his extent of responsibility for the crime.
Among the hudood punishments, the offences of fornication, slander and drunkenness carry the penalty of lashing or flogging and it could also be prescribed for a number of ta'zeer offences. As the first two are' Sexual Offences', they are dealth under 'Stoning' because they are connected with adultery.
The Qur'an strictly orders the believers to shun intoxicants as "it is the handiwork of Satan" (5:90) and it will 'divert' the believers from the "remembrance of Allah" (5:91) and the Hadith goes even further to condemn all acts associated with alcohol such as drinking, buying, selling, transporting and brewing. Drinking is rampant in Western societies even though "the greatest cause of 'violent' crime in the West is alcohol" Almighty Allah, in His Perfect Wisdom, has prohibited alcohol not only for its "evil effects on the body and the society, but also for their evil moral" consequences.
During the time of the Holy Prophet (saw), drunkards were generally beaten with shoes but at the time of the second Khalifah Umar the punishment for drinking was fixed to 40 lashes or eighty lashes for the more mischievous drunkards. People are not given the haad punishment for drinking alcohol in their homes in privacy, but at least two witnesses are required to bear witness to the act of drinking and it has to be proven that it was consumed by a mature person voluntarily without any compulsion. A person is only punished with flogging if all the definitional elements of the crime are proven and it is attested by reliable evidence.
Even with respect to flogging at the time of sentencing, certain conditions and restrictions are imposed; the punishment should not be inflicted by vicious executioners and it should not be carried out in severe hot or cold weather. It is also prescribed that the whip be of medium size, the flogging is done with average intensity and it should not be inflicted on the naked body nor on the head, face and private parts and the whipping should not cause any wound and it should be distributed evenly in various parts of the body and not only on the same parts. Such is the humanity of punishment in Islam even when it prescribes 'deterrent' punishments for major offences such as fornication, slander and drunkenness.
Zina is the most deadliest of all social crimes and "Islam puts an end to all those factors that 'allure' a man to zina or provide occasions for it" The Qur'an condemns zina not with the words "La Tazanu" (Do not commit adultery), as in the Pentateuch "Thou shall not commit adultery", but with the words "La Taqrabuz zina" (Do not go near adultery)...thus blocking all possible 'paths' leading to that act". That is why in Islamic societies, there is the segregation of the sexes and the Qur'an orders both men and' women to "lower their gaze" (24:30-1) and for women to wear the Hijab so that "they may be recognized and not molested" (33:59) as it is better for the purification of the hearts of both the sexes (33:53).
Islam also very strongly condemns false imputation of zina on another person (qadhf) as the Qur'an declares: "As for those who slander chaste women and produce not four reliable witnesses, then stripe them with eighty lashes and never accept their testimony thereafter" (24:4). Thus slander of this kind is dealt with severely as it seriously affects and damages self-confidence and strains family relations. Islam is never prepared to accept the kind of gossip that is so frequently found in the tabloid papers and the scandal - mongers are punished severely with eighty stripes.
Despite all the lawful channels provided, if a person transgresses the limits beyond all bounds of decency to commit zina in 'public', then Islam provides severe chastisement to safeguard the family and to save society from corruption and destruction and the punishment acts as a strong 'deterrent' to others. For fornication between unmarried couples the penalty is 100 lashes and for adultery between married couples the penalty is stoning to death (rajm). Even then the haad punishment is not prescribed for the mere commission of zina, but other definitional elements of the crime has to be satisfied; only that kind of adultery is punishable by stoning which is committed intentionally by a free person who is both mature and sane, the accused must be committed to a marriage and has had intercourse with his lawful spouse, the accused must have committed zina voluntarily without compulsion and the act of zina must be attested by four honest, reliable and trustworthy witnesses who must have all seen the act of penetration and all four witnesses must be 'unanimous' in every stage of the act including minute details (if statement of one witness is contradictory to the others, then all four witnesses will be given the haad punishment of 80 stripes for slander).
Such is the strict legal technicalities that have to be understood before the haad of stoning is carried out on adulterers. All the above mentioned conditions have to be met, before the haad is imposed which is very hard to do. Especially the question of witnesses is the most difficult aspect of all - the necessity of a minimum of four witnesses, as opposed to other haad offences where two are sufficient, who must be devout (the testimony of a fasiq, a person who lies or breaks any of the major prohibitions of Islam is inadmissible), the unanimous description of the act of penetration and other minute details by all four witnesses and the fear of receiving the haad penalty for slander on the part of witnesses greatly reduce the chance of conviction for the adulterers as the required evidence is "so strong and complete as to be practically impossible to obtain". That is why during the life of the prophet, "it was not possible to prove...one single case of adultery" and "during 1400 years of the Muslim era only fourteen cases of adultery have been recorded" - hence "punishment by stoning has remained what it always was", harsh in principle, "but extremely rare in practice".
Mutilating means "to deprive a person of an organ of the body". In Islamic law, its application is only confined to the hudood punishments for armed robbery and theft, except of course that it might be applicable to the retributory punishments of qisas. For all practical purposes, the punishment of 'cutting off' the hand is generally invoked for the offence of theft.